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May 3 -- A Day in Court: Injustice Can Be Its Own Reward

With the release of Gary Weaver from segregation on April 28 there was no need for a full hearing on the petition for habeas corpus. The Department of Justice lawyer suggested that it would be appropriate to file a Notice of Discontinuance, indicating that the matter was now settled and did not require court adjudication. I objected to this suggestion and advised her that I intended to appear before a judge and seek a formal order that Mr. Weaver be released from unlawful segregation together with an order for legal costs.

At the hearing in B.C. Supreme Court on May 3 before Mr. Justice Hood, the Department of Justice argued that the matter was "moot," meaning that because Mr. Weaver had been released from segregation, there no longer was an issue before the court that required adjudication and therefore it was inappropriate for the court to issue an order. I argued that an order should issue because it was necessary to send a clear message to the Correctional Service of Canada that in this case there had been unlawful segregation and that release from that segregation bore the imprimatur of the court. I submitted that by issuing the order the court would be furthering its role in ensuring that the Rule of Law ran inside prison walls and was consistent with Madam Justice Arbour's exhortation to the courts to take necessary measures to develop a culture of respect for legal rights within the Service. I referred Mr. Justice Hood to the paradox involved in cases like this, a paradox summarized by the 1977 Parliamentary Sub-Committee Report when it said "injustice, as well as virtue, can be its own reward." The paradox was this: the more egregious the violations of the law, the more unreasonable a warden's decision to maintain the segregation of a prisoner, the more likely that the Department of Justice, when it reviewed the record, would advise the warden to release the prisoner, because the case was indefensible and allowing it to proceed to court would result in a judgement damaging to the CSC's reputation. When this happens and court intervention is thus thwarted, from the point of view of the CSC and its staff, there are no lessons to be learned and therefore no changes to be made. Correctional life and the practice of illegality goes on. I advised Mr. Justice Hood that in Gary Weaver's case when I went to William Head Institution just two days after his release from segregation I heard from several staff members that they had been informed that Mr. Weaver's release from segregation was because of some legal technicality, not because there was a fundamental legal flaw in the segregation review process, or that there were no reasonable grounds to justify his segregation. I argued that an order from the court recognizing that Mr. Weaver had been unlawfully segregated, was an appropriate remedy to reflect both the juridical reality and to provide a necessary lever for change. Mr. Justice Hood ruled that because Mr. Weaver had been released from segregation the legal basis for the habeas corpus petition was moot and that no order should be made with respect to his release from segregation. However, he ordered that costs be awarded to Mr. Weaver, the first time such an order had been made in a habeas corpus petition that did not proceed to a full hearing, which in itself conveyed a message to C.S.C.

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